Jordan v. City of Greenwood Court Opinion

    tion law, it was Gray's statutory employer.
Gray opposed the motion arguing that un-
der the terms of the OutBr Continental
Shelf Lands Act, 4il U.S.C. $ 1833(b), the
longshoremen'g and Harbor Workers' Com-
pensation Act, 83 U.S.C. $ 901 et seg., was
made applicable to his situation. (This is
the same argument which the Benefits Re-
view Board approved below in Herb's Weld-
ing v. Gray, but which we found unneces-
sary to reach). The district court in Gray v.

Chevton, No. ?G{708 (W.D.La.19?8), grant-
ed the Bummary judgment and dismissed
the suit. The judge concluded that the
Outer Continental Shelf Lands Act did not
spply; that louisiana law applied; that
Chevron was Gray's statutory employer,
and that as to Chevron, Gray's sole remedy
was workers' compensation benefits. This
court affirmed.

Herb's Welding acknowledges that the
law of the case doctrine does not apply.
However, it argues that if the LHWCA
applies to Gray's accident, then Chewon
could not assert a statutory employer de-
fense since such immunity is not available
under the federal act.

Our previous decision in Gray v. Chevron
does not contrcl our present case. The
Gray v. Chevron opinion was rendered in
1978. It was affirmed in 1981 on the nar-
row issue of whether the district court cor-
rectly interpreted lnuisiana's workers' com-
pensation law in light of this court's deci-
sion in Blanchard v. Engine and Gas bm-
pressor Serviceg Inc., 613 F.2d 65 (5th Cir.
1980). Today's case, Ilerb's Welding v.

Gray, is based on an inconsistent premise
that the Longshoremen's and Harbor Work-
ers' C,ompensation Act not the Iouisiana
Workmen's Compensation Act is applicable.
Two facts, however, persuade us that Gray
v. Chevron should not control here. First,
Gray v. Chevron held that the Outer Conti-
nental Shelf l,ands Act did not extend
LHWCA coverage to Gray. That is not
eontrary to our present decision. It was
not asserted at that time that the LHWCA
could apply independerl of the Lands Act.
Second, since the inirial decision, the
LHWCA has undersr,:.: extensive interpre-
tation. We must n.,u ...x5i6lsr the LHWCA

a

JOiDAN v. CITY OF GBEEI{WOOD, nflSs.
Cl*er7ll Frd667 (l$ll)

ffiT

in light of Dircctnr, Office of Workerc'
hmpensation Programs v. Perini, 

- 
U.S.

-, 
108 S.Ct, 634, 74 L.EA.Zd 465 (1983);

Ward v. Dircctor, Office of Workerc' Com-
pnsation Pttgtzms,6&1 F.2d ll14 (5th Cir.
L982), cert. denied, 

- 
U.S. 

-, 
108 S.Ct.

815,74 L.Ed.zd 1013 (1983); and Boudreaux
v. American Workover, fnc., 680 F.2d 1034
(5th Cir.1982) (en banc), ecrt. denied, 

-u.s. 

-, 
108 s.cr. 815, ?4 L.Ed.zd 1014

(1983). Given the guidance of these subse-
quent precedents it is obvious that the
LHWCA on its own terms applies to Gray.
This position was neither advocatpd nor de-
cided in Gray v. Chevron.

The petition for panel rehearing is DE-
NIED and no member of this panel nor
Judge in active service on the Court having
requested that the Court be polled on
rehearing en banc, the suggestion for
rehearing en banc is also DENIED.

David JORDAN, et al.,
Plai ntiffs-Appellan ts,

v.

CITY OF GREENWOOD, MISSISSTPPI,
et al., I)efendants-Appellees.

No. 82-4150.

United States Court of Appeals,
Fifth Circuit.

Aug. 8, 1983.

a

In class action against city, its mayor,
city commissioners, and city municipal elec-
tion commission and its members for al-
leged racial discrimination in adoption and
maintenance of at-large city elections for
offices of mayor and commissioners, the
United States District Court for the North-
em District of Mississippi, William C.

Keady, Chief Judge, 534 F.Supp. 1351, en-



668

tered judgment in favor of defendants'

Plaintiffs appealed. In the interim, Voting

Rights Act was amended, which amend-

ment city contended on appeal was uncon-

stitutional and plaintiffs sought to enforce'

The Court of Appeals, Clark, Chief Judge,

held that where, after judgment was en-

tpred in favor of city, Voting Rights Act

was amended to proscribe not only inten-

tional discrimination, but also any voting

practice that results in denial or abridg-

ment of right to vote on account of race or

color, the Court of Appeals would not de-

cide constitutional issue but would remand

for reconsideration by the District Court, to

which the standard declared by the amend-

ment had not been presented in first pro-

ceeding, since a finding on remand that the

city voting scheme was not violative of new

amendment would render constitutional is-

sue moot.
- Vacated and remanded.

l. Constitutional [,aw e46(l)
If constitutional question is presented

on appeal, it should not be addressed if
there is a possibility that the case can be

decided on narrower statutory grounds, for

if the lower court finds the statutory
ground dispositive, resolution of the consti-

tutional issue will be obviated'

2. Constitutional Law e=46(f)

Federal Courts e939
Where, after judgment was entered in

favor of city in class action challenging

city's at-large commission form of govern-

ment under the Thirteenth and Fourteenth

Amendments and the Voting Rights Act,

the Act was amended to proscribe not onl-t"

intentional discrimination, but also any vot-

ing practices that result in denial or abridg-

ment of right to vote on account of race or

color, which amendment city contended on

appeal was unconstitutional and plaintiffs

sought to enforce, the Court of Appeal-s

wouid not decide constitutional issue but

woukl remand for rt'ct'nsideraticin br thc

district court, to rtiijr'il the standartl rlt'-

clared br th, atr t. :l I i :ll had llol lrt-:i':r

presented ir, fir:t 1'','r ''''':ttrg. sincu a f ind-

?U FEDEfiAL REPORTE& 2d SERIdS 
:

ing on remand that the city voting scheme

was not violative of new amendment would

render constitutional'issue moot' U'S'C'A'

Const.Amends. 13, 14; Voting Rights Act of

1965, $ 2, 42 U.S.C.A. S 1973.

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tio

Willie J. Perkins, Sr., Solomon C' Os-

borne, North MS. Rural Legal Services,

Greenwood, Miss., Leonard McClellan, Ox-

ford, Miss., for plaintiffs-appellants'

Patricia M. Hanrahan, Washington, D'C',

amicus curiae, Lawyers' Comm' for C'R'

Under Law.

Jessica Dunsay Silver, Dept' of Justice,

Washington, D.C., for U.S., amicus curiae'

Billy B. Bowman, Greenwood, Miss', for

defendants-aPPellees'

Appeal from the United States District

Couii fo. the Northern District of Missis-

sippi.

Before CLARK, Chief Judge, THORN-

BERRY anrt RANDALL, Circuit Judges'

CLARK, Chief Judge:

David Jordan filed suit on behalf of all

black resiclents of Greenwood, Mississippi,

challenging that city's at-large commission

form oi government under the thirteenth

and fourteenth amendments and section 2

of the Voting Rights Act,42 U'S'C S 1973'

The district court found that Cit.v of Mobile

v. Bolden, 446 U.S. 55, 100 S'Ct' 1490' 64

L.Ed.2d 4? (1980), required the plaintiffs to

demonstrate that Greenwood's atJarge

scheme was established or maintained for a

discriminator)' purpose' 534 P'Supp' 1351'

1364 (N.D.Miss.1982)' The ccurt concluded

that the plaintiffs had failed to make such a

showing. Id. at 1368. Jgdgmqnt was en-

tered for the CitY.

Three months after the district court's

decision was announced, an amendment to

section 2 of ther Voting Rights Act was

signe<i into law b1' the President' Tht' old

.'e rsion of section 2 u'as nterelf il rr'i'itr';r:-
ing of the fiftcenth anten<lt.tlellt' .l;''' l' rl'

416 U.S. at 61, 100 S.Ct at 1496, rr'

1,r'oscrilled onlf intenlionul <lisc'rri '



[:,

legislative departure fiom the theory on
which Bolden was decided.

The parties and arnici agree that the in-
tprvention of new section 2 presents the
primary issue on appeal. But they disagree
about the oours€ we should take. The City
of Greenwood contends that new section 2
is an unconstitutional exercise of Congress's
power to enforce the Civil War amend-
ments. According to the City, a law that
proscribes unintentional denial of voting
rights is neither necessary nor appropriate
to effectuate constitutional provisions that
proscribe on)y intentional discrimination.
The plaintiffs and amicus Lawyers' Com-
mittee for Civil Rights Under Law defend
new section 2 as a valid exercise of Con-
gress's extensive power to enforte the four-
tpenth and fifteenth amendments and urge
us to find a violation on the basis of the
record before us. The United States, also
as amrcus curiae, asserts that new section 2
is constitutional but advises a remand for
further proceedings in light of the new
standard it establishes.

For the reason outlined briefly below, we
take a path not urged by anyone. We
decline to reach the question whether new
section 2 is constitutional, vacate the judg-
ment of the district court, and remand for
further proceedings.

"If there is one doctrine more deeply
rooted than any other in the process of
constitutional adjudication, it is that we
ought not to pass on questions of constitu-
tionality . . . unless such adjudication is
unavoidable." Spector Motor Serv., Inc. v.

McLaughlin, S2S U.S. 101, 105, 65 S.Ct. 152,

154,89 L.Ed. 101 (1944).

tll This tenet takes many forms. See
generally Ashwander v. ?ennessee Valley
Authority, 297 U.S. 288, 341+6, 56 S.Ct.
466,480-8?, 80 L.Ed. 688 (1936) (Brandeis,
J., concurring). For example, if a case rais-
es both statutory and constitutional ques-
tions, the inquiry should focus initially on

i.

669

582, 99 S.Ct. 1355, 1364, 59 L.&1.2t 58?
(19?9). Moreover, if a constitutional ques-

tion is presented on appeal, it should not be
addressed if there is a possibility the case

can be decided on narrower statutory
grounds on remand. Wnd v. Gargia,450
u.s. 261, 26ffi, 101 S.Ct. 1097, 110H1, 67
L.Ed.2d 220 (1981). See also Elkins v. Mor-
eno, 435 U.S. M7, 661-62, 98 S.Ct. 1338,

1346-47,55 L.Ed.zd 614 (1978) (certifying a
possibly dispositive question of state law to
the Court of Appeals of Maryland); White
v. United States Hpe & Foundry Co., M6
F.2d 203, 206-n7 (Sth Cir.1981) (reversing
the district court for reaching a novel thir-
teenth amendment claim where the case

might have been resolved on statutory
grounds). If the lower court finds the stat-
utory ground dispositive, resolution of the
constitutional issue will be obviated. See

Alexander v. I-auisiana,405 U.S, 6?5, 684,
92 S.Ct. lm, t227,31 L.Ed.2d 536 (1972)
("The State may or may not recharge peti-
tioner, a properly constituted grand jury
may or may not return another indictment,
and petitioner may or may not be convicted
again").

12) This case fits squarely within these
principles. On remand, should the district
court find that Greenwood's scheme does

not violate new section 2, the constitutional
issue would become moot. If this occurs,
our restraint will have avoided the needless
resolution of an important constitutional
question.

An additional consideration makes appli-
cation of this doctrine particularly appropri-
ate in the conteXt of this case. This case

was tried and decided in the district court
without the benefit of new section 2. The
plaintiffs attempted to prove that Green-
wood's at-large s1'stem was established or
maintained for a discriminatorl' purposL.

The Citr- tried to shoq' it u'as n,.)i. Thr
court decided thr ca..c on this issire . Nr,
part)' ast(e.i th' c, i:",. to eonsidc' r, hr lhi''

JORDAN v. CITY Or GREEI{WOOD, MISS.
t Cho !! 7l I FJd 087 o$lt)

New section 2, on the other hand, 6utlaws the statutory question.' 8.g, Hanis v.

any voting practice that "results in" a deni- Mcfue,448 U.S. 297, 80H)?, 100 S.Ct. 26?1,
al or abridgement of the right to vote on 268;2, 6 L.Ed.2d 784 (1980); Bolden, M6
account of race or color. This change from U.S. at 60, 100 S.Ct. at'1495; New York
purpos€ to effect reprrsents a significant Transit Authoity v. Bea?8r,440 U.S. 568,

i.t
.-&",--



670 7u FEDERAL REPORTE&

I

?

2d SERIES

ty and other university and board of trus-
tees' officials requesting determination that
he was a tenured professor with university,
reinstatement, back pdy and punitive dam-
ages, and a hearing to clear name for al-
leged damage to reputation incurred during
termination. The Unihd States District
Court for the Western District of Louisiana,
Earl E. Veron, J., entered summary judg-
ment in favor of defendants on all issues,

and an appeal was taken. The Court of
Appeals, E. Grady Jolly, Circuit Judge, held
that: (1) assistant professor's mere subjec-
tive expectancy of continued employment,
even though he had not attained required
years of service for tenure, did not give him
constitutionallv protected property interest
necessar)' to invoke Fourteenth Amend-
ment's procedural due process provisions in
absence of any evidence to indicate that
universitl' utilized a de facto tenure policv
generally or in regard to assistant profes-
sor; (2) universitl' could deny tenure to
assistant professor because of desire to up-
grade department b1- replacing assistant
professor, who held onlv a master's degree,
with a teacher holding a doctorate, because

of complaints about a-ssistant professor's of-
ficial performance, and because of belief
that assistant professor's effectiveness a^s a
teacher was on the u'ane u'ithout violating
an5 constitutional rights of assistant profes-
sor; (3) universitl'tenure requirements did
not violate Fourteenth Amendment; and
(4) substantial fact issue existed with re-
gard to assistant professor's due process
claim of deprivation of a liberty interest in
continued emplol'ment, precluding summa-
ry judgmcnt against a-qsistant professor.

Affirmed in part and remanded.

l. Constitutional [an' a27?e)
Assistant professor's mere subjective

expectancy of continued employment, even
though he had not attained required 1,ears
of service for tenure, did not give him con-
stitutionally protected property' interest
necessar]' to invoke Fourteenth Amend-
ment's procedural due process provisions in
absence of any evidence to indicate that

the atJarge scheme had "resulted in" in-
fringement of black voting rights. As the
Supreme Court recently noted, "questions
not raised below are those on which the
record is very likely to be inadequate since
it certainly was not compiled with those
questions in mind." illinois v. Gates, 

-u.s. 

-, -, 
103 s.ct. 2317, ?3?3, 76

L.Ed.2d 527 (1983) (quoting Cardinale v.

Louisiana,394 U.S. 4:17, 4:i9, 89 S.Ct. 1161,

1L63, 22 L.Ed.2d 398 (1969)). The Court's
statement is descriptive of this case. With-
out adequate factual development we should
be very hesitant to reach constitutional
questions. W.E.B. Dubois Clubs of Amer-
ica v. Clark,389 U.S. 309, 312, 88 S.Ct. 450,

452, 19 L.Ed.2d 546 (1967) (cautioning
against deciding important constitutional
questions "devoid of factual context").
Failure to adhere to this principle risks
"the framing of broad rules, seeminglv
sensible on one set of facts, which may
prove.ill-considered in other circumstances."
Gates, 

- 
U.S. at 

-, 
103 S.Ct. at 23%.

Resolution of the important question of
constitutional law presented by this appeal
must await another day, if not an<lther case.

VACATED AND REMANDED.

George A. \I'ELLS, Plaintiff.Appellant,

v.

Jack V. DOLAND, et al.,
Defendants-Appellees.

No. 83-4005
Summary Calendar.

United States Court of Appeals,
Fifth Circuit.

Aug. 8, 1983.

Uniltrs:',-, assistant professor filed sec-
tior 19811 ,.. ,:rsi 1n't-sidcnt of universi-

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